Family law repeal will end presumption of both-parent contact

In a landmark announcement, the Ministry of Justice has unveiled plans to repeal the ‘presumption of parental involvement’ principle in family law.

The move, described by the Government as taking “action to protect children from abusive parents” means Family Courts will no longer work off the guiding principle that both-parent contact is in a child’s best interests.

It’s a decision widely supported as a necessary resetting of the law to prioritise children’s safety. Sarah Bell, Partner and Family Solicitor, welcomes the announcement and explores how it will affect cases going forward.

What is the ‘presumption of parental involvement’?

In 2014, the ‘presumption of parental involvement’ clause was introduced to the Children’s Act 1989 in England and Wales. Courts working under this presumption were to prioritise contact with both parents unless there was evidence of a risk.

Domestic abuse charities and the legal profession, including family law practitioners like ourselves, have long argued that the clause prioritised parental contact over the safety of children and perpetuated abuse in families affected by violence.

It was against this mounting criticism and campaigns that the Domestic Abuse Commissioner conducted a Harm Panel report in 2020 examining how effectively family courts could recognise and address domestic abuse allegations in child arrangement proceedings.

Ultimately, the report’s findings concluded that the presumption was not fit for purpose, leading to the Government’s recognition of the need for repeal, which will affect every case before the court where it is being asked to determine the arrangements for a child; where they should live and the time they should spend with their parents.

Will the repeal protect children?

Coodes view this development as a positive change which provides for the safety and wellbeing of children to be met.

It ensures that children are heard, protected and supported. Furthermore, we hope it will reduce the ability for an abuser to continue to abuse victims within the court process.

Now, the repeal will see the presumption replaced with a case-by-case assessment of a child’s best interests. Courts will centre evidence along with children’s voices and safety at the centre of each case prioritising their wellbeing.

Courts should conduct a full analysis of the case to ensure the child’s time with the absent parent is safe.

While there is no set timescale or indication as to when the repeal of presumption will be written into law, its removal is likely to affect how we as practitioners manage cases.

The child’s voice will need to be heard and their safety assessed which is likely to result in an increase in cases being referred to Cafcass (the court and family welfare advisors). Children will be able to share their wishes and feelings about the situation or their parents.

Additionally, it may also result in more fact-finding hearings taking place to determine whether any allegations raised have been proven.

While this is likely to create delay in the court arena, resulting in cases taking longer to conclude, it is a necessary and highly welcome step in putting in place the protections that children and vulnerable families need.

Child Arrangement Orders

Coodes’ Family law team understands the breakdown of relationships and impact on families can be a complex, emotionally charged time. Our team is proud of its reputation for delivering expert advice and practical solutions with sympathy and compassion

For guidance on Child Arrangement Orders, or our family law services, please contact Sarah Bell. Email sarah.bell@coodes.co.uk or call 01726 874723.

First Light are a charity offering support to anyone who is experiencing or has experienced domestic abuse or sexual violence. They operate locally in Devon and Cornwall, but also across England and Wales.

Coodes work closely with First Light to ensure our client’s safety and that of their children. To reach out to the charity directly, in Cornwall or Isles of Scilly, call their Safer Futures helpline on 03007774777. If you are in danger, please dial 999 immediately or 101 in a non-emergency.